As mentioned in previous blogs, a person's will is a legally binding declaration of his or her intentions to be carried out after death, and once it has been prepared by the testator, it may only be revoked during that person's lifetime.
There are some qualities that should be present in the will document, including:
- The Testator's Name: To avoid having an impact on the Will's instrument, the testator's name should be mentioned precisely and without any initial, spelling, or grammatical errors. Examining the testator's birth certificate or any other school records may also help to clarify the name.
- Revocability Under The Law: Generally, a testator's Will may be revoked at any moment throughout his or her lifetime, and the testator may designate any other person as his or her legatee. In the unlikely event that a testator wants to change his or her Will, he or she can make the required changes in the draft Will, known as a codicil. The cancellation of the Will cannot be used as a defense in a legal lawsuit brought by a third party against the testator.
- Appointment of Legatee: The testator has the unrestricted right to name any individual as a legatee or beneficiary of a Will.
- To Take Effect After Death: A testator may make a Will while still alive, but it will only become effective upon his passing. A gift made by a person while they are still alive that will become effective while they are still alive cannot be regarded as a Will.
That being said, according to Section 18 of the Registration Act of 1908, registration of a Will is not required. A will is valid regardless of registration as long as it satisfies all requirements for will validity, so there is no dispute regarding the proven validity of an unregistered will because Section 18 of the Indian Registration Act does not require that a will be registered.
A will's importance is not lessened by the fact that it is not registered. It is typically wise to have your will registered to avoid having its contents challenged. The act of registering the will provides proof and confirmation that it is the last surviving Will. Because the Sub-Registrar does not have custody of unregistered wills, they are also easily destroyed, damaged, altered, or stolen.
The Supreme Court ruled in the case of Ishwardeo Narain Singh vs. Sm. Kamta Devi and Ors. AIR 1954 SC 280, 1953 (1) BLJR 690 that the lack of registration of the Will cannot be used as a defense for its legitimacy. The Supreme Court of India, the country's highest court, ruled that Will registration is not required.
Registration will nonetheless have benefits. The burden of proof rests with the person presenting the will, who must convince the court that it is the final Will of a free and competent testator. An unregistered will, however, is adequate if two witnesses are present and sign the same document. As a result, will registration is not required under section 63 of the Indian Succession Act, which is applicable to all unrecorded wills.
In addition, provision 23 read with section 27 of the Indian Registration Act exempts the registration of the Will even after the required four-day period has expired. There is no time limit within which a Will must be registered, therefore it may be done at any point after it is executed.
Hence, registration of a Will is not mandatory however, the following conditions must be met for a will to be valid:
- The instructions of the Will must be carried out by the testator, the maker of the Will, or a different person working under the testator's direction while they are present. If the testator is unable to attach his signature, he may also insert his thumbprint.
- The signature must be placed so that it will at the very least give the impression that the signer intends to execute the Will.
- In the presence of two witnesses, who must all sign the will, the testator must sign the will.
- The unregistered Will satisfies the legal requirement of validity if two witnesses sign it in the testator's presence and the testator signs it as well.
3. So, what is the difference between a registered and unregistered Will ?
Will that has been registered: Registering a will entails no stamp duty and only a small registration fee. If a person registers his will, it greatly simplifies the legal heir's capacity to modify it. In a court of law, a recorded will is more trustworthy. A recorded will cannot be easily challenged in court.
Unregistered Will: A will that has not been filed with the court is one that the Executor has written on a piece of paper and kept in a secure location for use after his or her dying. An unregistered will is ambiguous, under the law. As countless instances of fake wills are reported to the courts. An unregistered will can be legally challenged, and winning is usually not difficult.
If you wish to register your Will, is it possible to register the Will anywhere in India ?
The sub registrar's office in the jurisdiction where the Will maker resides is where a Will must be recorded. Hence, you can register your Will locally by going to the nearest sub registrar's office.
4. So, why should one register a Will ?
The will that is registered will have more legal weight than the one that is not, for instance, if two wills of the same testator (writer of the will) are dated on the same day, their validity is contested, and one of them is registered.
The act of merely registering a will, however, is insufficient. 'Registered Will not by itself be adequate to erase all concern regarding it, when suspicion exists, without submitting the evidence of registration to a rigorous scrutiny,' the Supreme Court said in the case of 'Rani Purnima Devi and Others versus Kumar Khagendra Narayan Dev and Others.'
5. So, how is real estate transferred under an unregistered Will ?
As this is a requirement in several Indian states for the transfer of real estate, the Executor of an unregistered will must get probate of the Will in order to transfer property. A legal document known as a 'probate' that bears the seal and signature of a court representative attests to the validity of a specific will.
If such is not recorded, the claimant is required to request the succession certificate from the court in order to transfer movable property, including money in bank accounts, stocks, bonds, and other kinds of assets.
The limitation period in the case of a petition for probate or letters of administration of a Will must be filed within three years after the testator's demise in order to avoid unnecessarily prolonging the process. Additionally, this probate is not necessary for the wills made by Christians and Muslims.
The Executor is also in charge of gathering the decedent's estate and paying off his debts. The Executor designated in the Will frequently receives probate from the court, and the property must be delivered to the beneficiaries as laid out in the Will. Furthermore, an ancestral property that has not been divided cannot be passed on by will, whether it is registered or unregistered.
